8/31/2006

KFI hostJohn Ziegler is claiming he has sources telling him that Clinton Administation officials “at the highest levels” are now lobbying Disney officials to pull (or at least edit) “The Path To 9/11″ from ABC before it airs on 9/10 & 9/11.

[The lobbying reportedly includes efforts directed at former Democratic Senator George Mitchell, whom I believe is still Chairman of the Disney company, if I’m not mistaken.]

The ironic part is, the critics of this movie who haven’t seen it yet are going to have egg on their face. This film in no way “blames the entire event on Clinton” as some falsely claim. “The Path to 9/11″ absolutely slams Bush in a number of ways:

One small concession: As bloggers sometimes do, I was perhaps a bit rash in using the word “lie.” I wouldn’t outright lie in voir dire, though I’m sure Patterico and other opponents of nullification would interpret the misdirection I would use in answering questions to have the same practical effect. I would answer questions in a way that’s not openly false, but that certainly masks what I’d intend to do.

Balko’s stated intent to use Clintonesque “misdirection” instead of “lying” doesn’t make his plan to mislead the court any more admirable.

First, I think Balko overestimates his ability to dodge questions in jury selection. The most fundamental question asked of jurors is whether they can follow the law. They are asked that question under oath. Balko will be asked direct questions under oath like this: are you willing to follow the law? and will you follow the judge’s instructions even if you don’t agree with them? When he knows the answer to these questions is “no,” how is he going to answer these direct questions in a way that constitutes “misdirection” but not “lying”?

Even if he could somehow pull this off, is this truly admirable behavior? I think it’s clear that it isn’t. This morning I used the analogy of police lying under oath about probable cause to ensure the conviction of a truly guilty defendant. Even if the defendant is a truly bad man — say a killer who is certain to kill again if he hits the streets — we can’t tolerate such lies in our system of justice. Would it be better if the officer somehow managed to avoid “lying” but rather employed “misdirection” that gave the court the false impression that the search was legal when it wasn’t? Absolutely not. Witnesses are to tell the whole truth in their testimony, and let the chips fall where they may. Deliberate “misdirection” is not acceptable. The same goes for jurors answering questions in voir dire.

As I said this morning, Balko’s argument — justifying lying to the court under oath to further his agenda — could easily be used by a blogger to justify lying on his blog to advance the same important principles. And I don’t see how it’s any different if it’s “misdirection” rather than lying. I assume Balko would disavow any intent to deliberately misdirect readers on his blog in order to make his arguments. But why? Why is making honest arguments on a blog more important than telling the truth to the court while under oath??

And I am profoundly unimpressed by the argument, advanced by some commenters, to the effect: we’ll start being honest when the system is honest with us — but as long as there are some lying judges or lawyers out there, why then, we have no duty to be honest to the court. That’s pure, naked rationalization of dishonesty. There are a million liars out there in the world, and if you are going to use their lies to justify your own, you have no integrity at all, because you can always find someone out there who has lied.

Deiberate misdirection is little different from lying, and it is intolerable in the justice system. Enough people got sick of Slick Willie and his cute circumlocutions that the derogatory term “Clintonesque” needs no explanation. Balko essentially says he’d be Clintonesque with the court. When you’re under oath, that doesn’t cut it. Furthermore, there’s nothing admirable about being Clintonesque.

P.S. By the way, Balko seems to think he’d be kicked off any jury anyway, regardless of his misdirection. But why? Is he really so famous that every prosecutor in the country knows who he is? If he gets himself in front of a prosecutor who is unfamiliar with his writings, and he misdirects the court and counsel to get on a jury, why wouldn’t he be successful? So this is not necessarily a purely hypothetical situation, as he appears to assume.

[Patterico] does again take a jab at my credibility, implying this time that someone who would mislead to get onto a jury in order to prevent an injustice would also lie on his blog to further the radical libertarian agenda.

No, I simply noted that the logic Balko employs could be used to justify lying on a blog. In a previous post, I said three times that I wasn’t accusing Balko of lying on his blog, but I forgot to say it three times again, so he now accuses me of it.

Whatever. I’m not the guy advocating dishonesty, Balko is. If he chooses to avoid the implications of his proposal in his latest post, that’s his problem, not mine.

His explicit advocacy of dishonestyisn’t winning him any fans, and I’m guessing his refusal to confront my real criticisms head-on aren’t helping his cause much either.

I’ve said before that I most certainly would. Moreover, I think we need a test case to invalidate the perjury trap judges and prosecutors in some jurisdictions set when they ask potential jurors if they’ll judge only the facts and not the law. It creates a situation where potential nullifiers are either dismissed or must put themselves in legal jeopardy to get selected for the jury. Given nullification’s rich history in American criminal jurisprudence, and the fact that the founders intended it to be an extra layer of protection from unjust laws and laws applied unjustly, these attempts by courts and prosecutors to take nullification off the table need to be challenged.

. . . .

I’ll happily preach the gospel of nullification — even to the point of advocating misleading the court to get into a position to nullify –as one small way to stem the tide.

I have said I would support jury nullification in extremely rare and desperate situations, where the fabric of our society was falling apart and our laws were inconsistent with basic humanity. For example, I would not convict someone of helping a slave escape his master. If we somehow passed a law making it illegal to be Arab, or Jewish, or black, or Mexican, I would not convict someone for that “crime.”

But Balko says he would lie under oath, not just in a desperate humanitarian situation, but also to advance a host of items on his libertarian agenda:

I’d have nullified in the Richard Paey case. I’d also have nullified in the Dane Yirkovsky case. I’d nullify in any medical marijuana case where the feds are prosecuting drug crimes that the state where the crime took place has explic[i]tly made legal. I’d nullify in any case where mandatory minimums would mean a conviction would result in a punishment wholly disproportionate to the crime (see Weldon Angelos). I’d nullify anyone in Washington, D.C. charged with defending his home with a firearm (yes, it’s illegal — not just to own a gun, but to actually defend your home with one). I’d nullify in any case where it was clear to me that the prosecutor was motivated more by pol[i]tics than by justice. Which means I’d nullify in cases where it was clear the prosecutor was “making an example” of someone. I’d nullify in white collar crimes where heavy-handed regulation has made it impossible for business owners and business executives to follow one law without breaking another (see Jim DeLong’s book for a lit[]any of examples). I’d nullify in cases where regulatory laws now, absurdly, bring criminal sanctions for honest mistakes, misreadings of the massive regulatory code, or unforeseeable mistakes by subordinates. I’d have null[i]fied in the ridiculous lobster tail case.

Balko takes care to point out: “That’s not a comprehensive list, of course.”

That’s fine. He’s entitled to his disagreement. And guess what? Many, including me and many of my readers, agree with some or all of Balko’s libertarian principles.

But there’s a way to go about seeing that your principles are enacted into law. There’s political activism. You can write or call your Congresscritter. You can write a letter to the editor or start a blog. In California, the people can make law themselves through initiatives. There are any number of other perfectly honest and perfectly legal ways to work to change laws with which you disagree. That’s how we do things in a representative democracy.

Lying your way onto a jury isn’t the right way to fight these battles.

This is especially true when people of conscience might disagree with you about some of your principles. To take just one example, one of Balko’s links has to do with the Sarbanes-Oxley Act. If you’re unfamiliar with it, it’s a law passed in the wake of the Enron and WorldCom scandals that changes rules about how companies handle accounting, and it carries criminal penalties. Now, reasonable people can disagree about the need for this law, and about the details of how such changes should be implemented, if at all. The CEO of the New York Stock Exchange has said the law is necessary. Radley Balko thinks it’s not. Congress balanced the competing interests and passed a law that it believed was the right law at the time. Maybe it is, maybe it isn’t, but it’s the result of a process that takes into account the interests and views of a broad range of interests — not just those of radical libertarians like Balko.

No matter. If you’re charged under this law, Balko will acquit, even if you’re guilty. The balance of interests and the congressional process I have described simply don’t count when Radley Balko decides to lie his way on to a jury to upset a prosecution brought under that statute. Balko, as an individual, has made up his mind, and that ends the matter. And so the legislative process that created the law, and the judicial process designed to enforce it — they can all go to hell.

I assume that Balko would not consider it right to vote multiple times for the libertarian candidate of his choice. I also assume that he would never lie on his blog to advance a libertarian agenda.

But why? If he proudly proclaims that he’ll lie under oath to a judge to advance the libertarian cause, what principle is it that restrains him from engaging in other acts of dishonesty to advance the principles to which he has devoted his life? Again, I take it for granted that Balko does not engage in such acts. But one could easily rationalize such dishonest acts with reasoning similar to that which Balko uses to justify lying to the court. After all, one could argue that the principles of libertarianism and federalism that Balko embraces are the only principles consistent with the views of the Founding Fathers. Isn’t it critical for us to get candidates into office who will carry out this uniquely American vision? And if we have to vote a few extra times to make it happen — or if we have to tell a few white lies in our public arguments in support of such candidates — well, you can’t make an omelette without breaking a few eggs. As long as the libertarian agenda is carried out, isn’t that the highest principle?

Again, I assume Balko would never make such an argument, and I take it for granted that he does not and would not engage in those other acts of dishonesty. But the reasoning he uses to justify lying to the court, it seems to me, could be used to justify these other dishonest acts as well. I don’t see what separates those acts of dishonesty, which he would not engage in, from the dishonest act of lying to the court under oath, which he has explicitly advocated.

The problem with all of these arguments is that they are patent rationalizations of rank dishonesty. Sure, Balko might consider libertarian principles to be essential to our society. But guess what? a police officer might see punishment of criminals as essential to an orderly society, too. And if he has arrested a truly bad man who is definitely guilty of a crime, he might well rationalize lying about probable cause to make sure that criminal is held accountable.

We can’t tolerate such lies, even if they are told in furtherance of a laudable goal, such as convicting the guilty, or advancing the libertarian cause. We just can’t tolerate lies that interfere with the working of the judicial system, because they undermine the integrity of the system — and the integrity of the system is very, very important. It is not something to be thrown overboard lightly, simply because someone has a political disagreement with the way society has chosen to balance competing societal interests.

P.S. Do me a favor, please, and do not misread this post as accusing Balko of lying on his blog. Not only I am not making that accusation, I say at least three times in this post that I take it for granted that Balko does not do that. I say this in advance because I have noticed that some commenters tend to distort and/or exaggerate my statements regarding his posts and columns. This is a post about Balko’s ideas and the effect they would have on the legal system. I may delete any comment that tries to foment a blog war where none exists.

UPDATE: Balko has responded, and has backed off his claim — but not much. I have the details here.

[UPDATE FROM PATTERICO: Note to leftists coming here from Think Progress, Glenn Greenwald, FireDogLake, etc. — Justin Levine, who wrote this post, is the producer of the highest-rated morning talk-radio show in Los Angeles. That, and not his recently begun guest-blogging stint with this blog, is why he got to see an advance screening of “The Path to 9/11.”]

I have been fortunate enough to see an advance showing of The Path to 9/11 – due to air in 2 parts on ABC on 9/10 & 9/11 respectively.

For those who have been asking for a clear historical account of the build-up to the 9/11 disaster, free of political spin, politically correct whitewashing and partisan wrangling – I can say wholeheartedly that this is the film that you have been waiting for.

“The Path To 9/11″ is astonishing.

It is an amazing achievement on many levels. It is flat-out one of the best made-for-television movies seen in decades. The only thing that would keep this movie from theatrical distribution is its nearly 5-hour running time (split over two days in this instance). Forget CNN’s “replay” broadcast from 9/11 – Trust me and mark your calendars to watch ABC these nights.

Christopher Hitchens has attempted to take up the mantle of George Orwell in the current era. He makes the argument that much of what Orwell had to say should still speak to us today. After reasearching the primary documents for myself, I think Hitchens is right on the money. [Scroll down after the jump for what I offer as proof.]

David Brooks over at the Weekly Standard disagrees. Brooks writes:

GEORGE ORWELL was one of the best essayists of his time, and Christopher Hitchens is one of the best essayists of his. Orwell is famous for his intellectual honesty and his willingness occasionally to anger his allies on the left. So is Hitchens. A book by Hitchens on Orwell seems natural and inevitable–like an Ali-Frazier fight or a Hepburn-Tracy movie. The publishers are not hyping things when they advertise this book as “a true marriage of minds.”

But for all the wisdom that Hitchens brings to this book, there is a problem with his “Why Orwell Matters”–for it leaves the reader with the impression that Orwell doesn’t actually matter any more. To enter Orwell’s world is to reenter a world of totalitarian nation-states, Communist intellectuals, blacklists, European imperialists, proletarian masses, and pre-feminist attitudes. But the Cold War really is over, and none of those other things is very important today. As you take the Hitchens-guided tour through some of those old, old controversies, it occurs to you that the categories Orwell used to analyze his own world would mislead us if we relied on them now.

I haven’t read Hitchens’s book yet. I can’t really tell from his essay if Brooks hasn’t read much Orwell or not. He might merely be giving an opinion on Hitchens’s own writing rather than making a substantive judgment on Orwell himself.

In any event, the substantive conclusion on Orwell is wrong. Orwell is most certainly relevant in the current era of war. Some of his passages make the hair on the back of my neck stand up because his writing seems so prescient over 50 years later – The fundamental nature of the anti-war Left, the U.N., anti-Semitic thought, the problems of British entanglement with Inida and the current parallels to the Iraq situation, etc.

8/29/2006

P.S. I am disabling comments. mostly because there are know-it-alls out there dying to explain to me why I was stupid to book a Bahamas trip during hurricane season, and I don’t feel like justifying myself or reading such comments. Those of you who are decent hope we encounter no problems; I already know that and appreciate it.

Gotta love the Internet.

UPDATE: Looks like the hurricane watch has been cancelled, although a tropical storm warning remains in effect. So this leg of the trip is not likely to be disastrous, just very rain-filled.

There are few absolutes in this world. That doesn’t invalidate general principles.

For example, I believe soldiers should follow orders.

But if a superior orders the soldier to murder a young child out of revenge for another soldier’s death, the soldier should disregard the order.

Am I a liar for having claimed that I believe soldiers should follow orders?

No. The fact that you can posit a very rare scenario to the contrary does not invalidate my basic principle: soldiers should follow orders. It simply means that there are few absolutes in this world.

Similarly, let’s assume you are against torturing people by poking out their eyes. If I could paint you a scenario where you could save millions only by torturing an evil man by poking out his eyes, you’d do it.

That doesn’t mean you’re for it. And it doesn’t render your statement of opposition meaningless.

I am against jury nullification. Some have advanced extreme examples that either would never occur in the real world, or where the moral choice is so clear that it would be obvious, except to those blinding themselves to their own humanity for the sake of consistency.

I would vote to acquit someone charged with the “crimes” of being Jewish, or saving slaves.

That doesn’t mean I support jury nullification.

The jury is an important bulwark against the state.

But if a drug dealer is the scourge of a Compton neighborhood, creating a heightened risk of drive-by shootings from rival drug dealers, as well as a generally lower quality of life, the people of that neighborhood should not be subjected to that drug dealer because some wine-sipping libertarian from the Westside decides that, in his opinion, drug dealing is a victimless crime and he won’t convict even if the evidence is overwhelming.

Let the wine-sipper lobby his Assemblyman, or start an initiative. The jury room is not the place to change the law. Juries are not freestanding Legislatures of 12, and to allow them to act as such is to undermine the Rule of Law.